"Throughout the life of the case, it was never clear to CPS really what relationship these folks had to him and we didn't feel that CPS had the right to make that decision," said Marissa Gonzales, a spokeswoman for the Department of Family and Protective Services.

The Fofanah family took the battle to court and were able to block a burial by the state.

Tuesday morning, in the 298th district court, lawyers for CPS told a judge they removed James from an abusive home and needed guidance on who could serve as James' next of kin.

The judge didn't want to revisit allegations of abuse. Instead, he asked witnesses be called to establish a relationship between James and his biological family.

From the stand, Foday testified that in his culture, the oldest child becomes the caretaker.